May I Obtain Sole Custody Of My Child In New Jersey?

March 01, 2015
By
Edward R. Weinstein

Share

In my vast experience as a child custody lawyer in East Brunswick, New
Jersey, I am well aware that only in rare cases will a judge give one
parent sole legal custody. The attorneys at my law firm all understand
the factors that a judge of a New Jersey Family Court shall consider include
the ability of the parents to communicate, cooperate, and agree in matters
concerning the child; the willingness of the parents’ to accept
custody; the child’s relationship and interaction between the child
and his or her parents or siblings; any history of domestic violence;
the child’s preference, as long as that child is of sufficient age
and capacity to reason to make an intelligent decision; the child’s
needs; the stability of the offered home environment; of the quality of
education; the parents’ fitness; the quality and extent of the child’s
time spent with the parent before separation; the employment responsibilities
of the parents; and the age and amount of children.

The M.I. v. J.I., is one of those cases where the court believed that facts
of the case and actions of one parent during litigation warranted the
award of sole legal custody to one parent. M.I. and J.I. got married in
1999 and had two children together. In 2010, J.I. filed a complaint for
divorce, which was followed by over two years of litigation. The New Jersey
Appellate Division called the trial testimony a “sad tale of two
‘adults’ who refused to put aside their hatred and animosity
for each other, even though the best interests of their children was at stake.

On February 11, 2014, a Family Part judge entered a judgment of divorce
that granted J.I. sole legal custody of the kids. The award was subject
to an advance written notice to M.I. for every legal custody issue that
may arise, so M.I. had enough time to get judicial intervention. The judgment
of divorce also established that each parent would share physical custody
with both parents having equal time with the children, during a two-week
period with a pickup and drop off schedule. J.I. was then designated as
the parent of primary residence, and awarded the right to pick the schools
for the kids, upon notice to M.I of course.

Sole custody on the other hand is comprised of only legal custody and physical
custody, with no combination option, unlike joint custody. A parent with
legal custody has the sole right to make decisions about long term plans,
education, religious upbringing, discipline, medical care, and any other
decision that may affect the child’s welfare. A parent with physical
custody lives with the child and has the right to make decisions regarding
the child’s everyday needs. In sole custody only one parent has
both legal and physical custody, and the child only has one primary home.

Joint custody is comprised of three different subcategories, including:
joint legal custody, shared physical custody, and a combination of the
two. Joint legal custody is an arrangement where both parents share in
the care of the child, and make decisions about the child’s welfare
together. Shared physical custody is where the child has two homes, and
spends at least 35% of his or her time with the other parent. Parents
can also mutually agree to a special joint custody arrangement that is
a combination of joint legal and shared physical custody. In a joint custody
arrangement, it is vital for both parents to communicate, and make decisions
that might affect the child’s welfare, together.

Getting sole legal custody in New Jersey is quite rare, as Family Part
judges find joint legal custody to be the optimal custody arrangement.
Sole legal custody is reserved for rare cases in which the court determines
that sole custody is in the best interest of the children. The child’s
best interest is also the paramount factor in and determination of custody award.

M.I. appealed the judgment of divorce and argued that the judge did not
apply a best interest of the child analysis in determining the custody
award. The New Jersey Appellate Division stated that when a Family Part
judge determines what custody arrangement is in the best interest of the
child, he or she must apply the factors enumerated in
New Jersey Statute 9:2-4. The New Jersey Appellate Division explained that the trial judge’s
written opinion started with over three pages referencing testimony that
demonstrated the belligerent, demeaning, and offensive conduct each parent
showed each other. The Family Part judge made mention of M.I.’s
refusal to follow court orders, and J.I.’s false testimony given
under oath. Because of this obvious inability to cooperate and communicate
between the parents, the Family Part judge determined that in this case
joint custody simply would not work. Even though the judge stated that
joint legal custody is the optimum and desire result in most cases, in
this case, unless one parent had sole legal custody, the Court was afraid
that it would have to intervene for each and every little decision that
related to the upbringing and care of the children. Therefore, the judge
awarded sole legal custody to J.I. because he showed better ability and
propensity to follow court orders. M.I. on the other hand defied court
orders regularly and consistently. The judge explained that she had not
abided by orders about dogs being in the home, joint decision making,
and regularly make unilateral decisions with major impacts like education
and medical issues. Moreover, her judgment on numerous occasions was suspect,
like allowing babysitters that were basically strangers to sleep in the
same bed as the children, allowing her older daughter to ride on a motorcycle,
leaving the children alone to get burnt by a rice steamer, or fall out
of a stroller or changing table.

The judge also noted that M.I. had also accused defendant of hitting the
kids, which was an unsubstantiated claim of abuse, and lied to the police.
In the end the Court found that J.I. would be more likely to follow court
orders about parenting time and custody because he showed a much greater
likelihood to do so during the litigation of the case, and would be more
likely to tell M.I. about what was happening in the children’s lives.

As such, the New Jersey Appellate Division was not convinced by M.I.’s
argument that the Family Part judge’s factual findings were not
supported by the record. The appellate panel explained that they give
broad deference to fact finding made by Family Part judges because of
the court’s special jurisdiction and the judges’ special expertise
in family matters. In many divorce actions the evidence is mostly testimonial
and requires determinations of credibility, and so deference is even the
more appropriate. As such, the New Jersey Appellate Division will only
reverse when a mistake had to have been made because the Family Part’s
findings of fact are so clearly inconsistent with or unsupported by the
reasonably credible evidence that they offend the notions of justice.

The New Jersey Appellate Division reviewed the record and was satisfied
that the Family Part judge’s findings of fact were supported by
substantial and credible evidence. However, M.I. also argued that the
Family Part judge committed error by resting the custody decision on a
determination of who would be more likely to abide by court orders instead
of the best interest of the child standard. The New Jersey Appellate Division
also agreed that the Family Part judge did not apply the proper best interest
of the child standard. Still, the appellate panel noted that they could
infer that the judge determined that J.I.’s greater likely hood
with complying with court orders would benefit the children’s well-being.
As such the New Jersey Appellate Division ordered a remand, and ordered
that the judge must explain how the best interest of the children were
being served by granting sole legal custody to J.I.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.